Does Divorce Law Encourage Couples to Reconcile?

October 26th, 2018

One of the aims of divorce law is to buttress the stability of marriages and to encourage divorcing couples to reconcile. This is embodied in Section 6 (1) and (2) of the Matrimonial Causes Act 1973 (MCA).

Section 6 (1) requires the legal representative acting for the petitioner in a divorce or dissolution to confirm whether he/she has discussed with them the possibility of a reconciliation, and whether he/she has provided names and addresses of persons qualified to help effect a reconciliation. This takes form in a legal document known as a ‘Statement of Reconciliation’ which is to be submitted to the Court along with every application for divorce/dissolution.

However, this seems unlikely to increase reconciliations as the legal representative can simply tick that they have not engaged in this discussion, and the petition can, nevertheless, proceed. There is no obligation resting on the legal representative to take part in this discussion and some would even describe the Statement of Reconciliation as a piece of ‘pointless paperwork’.[1]

Section 6 (2) attempts to further the aim by enabling the Court, at the Judge’s discretion, to adjourn proceedings at any stage if it appears that the parties have a reasonable possibility to reconcile. An adjournment can last for such period as the Court sees fit. There is little guidance as to what constitutes a ‘reasonable possibility’ and the Court is therefore given a rather broad power in this regard.

If the divorce is, then, paused for a certain length of time, couples who fail in this reconciliation may have to restart the process again; incurring more costs and possibly further deteriorating the relationship. For instance, if the person applying for a divorce has continued to live with the other party for over six months after an incident of adultery or ‘unreasonable’ behaviour, they may not be able to cite this as having caused the breakdown of the marriage. Similarly, once the first stage of the divorce (called Decree Nisi) is granted, the person instigating the divorce must apply for the second stage within one year or be forced to submit a covering letter explaining the delay. If the delay is significant (such as in one case in which a couple reconciled and cohabited for four years after the Decree Nisi), it may be necessary for a whole new application for divorce to be brought.[2]

What could be the reason behind divorce law wishing for couples to reconcile? Is it related to the stigma formerly attached to ‘divorcees’? This clearly is no longer appropriate in the modern world where there is no shame for persons being divorced. There is an argument that encouraging couples to stay together is not, really, achieving anything. Furthermore, the aim to promote reconciliation is juxtaposed against the law’s mainly fault-based facts for a divorce.

The fault-based facts for divorce, as briefly described above, are what is known as ‘unreasonable’ behaviour and adultery (MCA 1973 S1(2)). Behaviour is the most commonly cited fact as it is the only one applicable for couples who have not been separated for at least two years and who have not engaged in adultery. This means that the petitioner has to detail aspects of the respondent’s behaviour that he/she finds intolerable to live with, and petitions are often necessarily bolstered with incidents of behaviour which were not, in fact, viewed with as much hostility as they must be described as in order to satisfy the high bar.

Some people may argue that this, instead, encourages couples to separate rather than to reconcile – turning the aim of the law on its head. It supports a notion that there is a guilty and an innocent party – contrary to the more mainstream opinion which is that there is usually fault on both sides.

It could be argued that the current requirements, such as the need to complete a Statement of Reconciliation, do very little to support reconciliation of divorcing couples. However, to increase the onus on divorcing spouses or their legal advisers would not be in line with the ‘laissez-faire’ model in which there should be minimal intervention in private family life. Many would argue that, once couples have chosen to divorce, there is little anyone else can or should do to change their minds. Some couples who are part-way through the divorce process may even be put off the idea of a reconciliation for fear that they may have to go through the expensive and adversarial procedure for a second time.

Now that divorced persons no longer carry a taboo, there does not appear to be much in the way of justification for the law wishing for couples to reconcile. Therefore, it really does seem an outdated and unrealistic aim of divorce law.

Holly Mullen

PA

Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.

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